Excepciones a la obligación de retener y de ingresar a cuenta

The moral status of the foetus is the subject of heated discussion, and about which it seems impossible to reach peaceful agreement.6 _{While there is a high}

degree of consensus with regard to the biological facts and criteria of gradual-

3 _{It is interesting to visit the webpage worldabortionlaws.com/map, as one can observe the situation of}

abortion all over the world and note the correlation between the north and south, between countries where abortion is prohibited and poverty.

4 _{“Throughout our entire legal history the life of the foetus has been protected to a lesser extent than}

independent human life. Therefore, among other things, the punishment is, and has always been, far lighter in abortion than in homicide. For the law, the confirmation of the existence of a person with rights and responsibilities is diverse from the moment when a life cycle begins that will give rise to a person. In other words: the prenatal process does not confer the status of person; this condition is only acquired with birth (art. 29 CC) and therefore it is subject to the fundamental right to life envisaged in article 15 CE and article 2 CEDH.” Ruling on the scope and limits of the therapeutic and eugenic indications of voluntary termination of pregnancy, requested by the Department of Health of the Generalitat de Catalunya, issued by Mirentxu Corcoy Bidasolo, Santiago Mir Puig and Joan Josep Queralt Jiménez, professors of Criminal Law, University of Barcelona.

5 _{See the sentences of the Constitutional Court 53/85, 212/86 and 116/99.}

6 _{On the need to find a solution, see Singer, P. (1997). Repensar la vida y la muerte. El derrumbe de}

ism are accepted, from the legal point of view as well, since birth is considered to be the moment when a person acquires rights, the same is not the case for termination of pregnancy.

From a philosophical point of view attempts have been made to find a criterion indicating which beings have full moral rights; the problem is that the criteria given are not universally accepted and they may also clash with one another, or lead to absurd or contradictory consequences in their application. Sensitivity, the capacity to feel suffering and pleasure; consciousness, the ca- pacity to be aware of itself and its surroundings; the capacity to anticipate and relate to others; the capacity to have a moral conscience, to distinguish be- tween good and evil … and so many others that, nevertheless, applied to foe- tuses lead us to the paradox that it is in practice impossible to grant foetuses equal rights without cancelling out those of women.

It is therefore necessary to introduce to the debate two interesting ele- ments: a) the distinction made about potentiality. Foetuses are potential peo- ple but they are not fully developed yet (just as although all oak trees have been acorns, not all acorns become oak trees, according to the well-known apho- rism); b) the idea that supra-conformist forms of behaviour — the “good Sa- maritan” — are not required (and even less so in criminal law); hence it should not be considered a woman’s obligation to continue with an unwanted preg- nancy that may imply taking risks she does not want to.7

Between the clash of absolutes that arises when the foetus is granted pre- dominant rights over those of the woman, prohibiting abortion under any circumstances, or giving the woman absolute rights to decide freely about her own body, at any time, the proposed position is gradualist and very reasona- ble.8 _{At the beginning of pregnancy, it is understood that the woman’s decision}

over the potentiality of a life at the embryonic stage takes precedence, and,9

establishing time limits, the decision is left in the hands of the subject with rights (the woman), respecting her autonomy without the need for controls by

7 _{See Warren, M. (1995). “El aborto”, in Singer, P. (coord.). Compendio de ética. Madrid: Alianza}

Editorial. Also very interesting is the controversy between Thomson and Finnis, the Spanish version of which is included in Debate sobre el aborto. Cinco ensayos de filosofía moral. Madrid: Cátedra, colección Teorema, 1992.

8 _{The idea of the three trimesters associated with viability comes largely from the famous case Roe V.}

Wade, in 1973. See also Dworkin, R. (1994). El dominio de la vida. Una discusión acerca del aborto, la eutanasia y la libertad individual. Barcelona: Ariel, where an idea of the sacred nature of non- religious, secular life is defended, hugely interesting.

9 _{See Mitjans, E. (2007). “Bioética e igualdad en la interrupción voluntaria del embarazo.” In: Casa-}

third parties, doctors or psychologists. From thereon it is considered that as the foetus acquires greater viability, greater measures of protection are required; therefore, only the indications of serious danger for the life and health of the mother and malformations of the foetus are maintained.

The most basic and intuitive idea of rights leads the possibility of making one’s own decisions about life options back to terms such as freedom, dignity and justice. “The right to decide” is the cry of the Enlightenment, of “dare to know and to decide”, which today still arouses so much fear and reticence, and which is so often claimed to be contrary to communal co-existence, ignoring that deciding freely does not mean harming coexistence, but that it needs to be made compatible with the freedoms of others.